Where do probate proceedings occur? Typically, probate is commenced in the state in which the decedent resided. The state of residency listed on the death certificate is most commonly used to determine the decedent’s residency. The decedent’s personal property as well as real property located in the state of their determined residency is subject to the jurisdiction of the court in that state of residency.
On occasion, however, the decedent may own property outside of the state of Nevada. Real property owned in another state has to be subject to a probate proceeding in that state where it is located. The probate laws and procedures vary from state to state. Some states may allow for simplified probate proceedings called ancillary probate. Some states require full administration and do not make any exceptions for the out-of-state decedent with real property located in that state.
When the decedent is not a resident of Nevada but at the time of death owns real property in Nevada, ancillary probate for that real property is required in Nevada. In Nevada, the ancillary probate process and its cost are almost the same as the domiciliary probate process. The differences are minimal. The assets subject to Nevada ancillary jurisdiction are limited only to the real property located in Nevada. Instead of the original Will, which must be filed in the court of the state where the decedent resided, a copy certified by the court in possession of the original is filed. The small estate affidavit process cannot be utilized, because in Nevada the small estate affidavit cannot be used to transfer real property. Usually, the ancillary probate process in Nevada starts after the probate administration is commenced in the state where the decedent was a resident at the time of death.
Sometimes, real property in Nevada is owned by a non-resident whose other assets pass outside of probate, either by operation of law or because they were placed in trust. In other words, only the real estate in Nevada is subject to probate. If there is no need for probate in the decedent’s home state, then the probate proceeding in Nevada occurs as a regular probate. In that case, the original will must be filed in a Nevada proceeding.
The simplest way to avoid ancillary probate, whether in Nevada or, for Nevada residents, in another state, is to ensure that all one’s assets, including out-of-state real properties, will pass outside of probate.
There are multiple strategies that can be utilized to achieve that goal. Creating a living trust, and ensuring that all real and personal property is properly placed in trust, offers a comprehensive solution that will address the passing to one’s beneficiaries of most of the assets. The execution of deed upon death can help to ensure that the real property will not be subject to probate. Owning the real property with another person as joint tenants with right of survivorship allows the real property to pass to the surviving tenant without probate; however, it does not avoid the probate issue upon the second death. The real property can also be transferred or sold before death. While most of those strategies, except the sale or transfer, do not impair the owner’s ability to use, rent, sell, or encumber the property, they can however create additional legal issues that should be addressed. Among them, a properly drafted, executed, and administered estate plan likely offers the most comprehensive solution.
Natalia Vanderlaan is an attorney in Minden
